The latest stench in the Supreme Court

Clarence Thomas is in trouble. The Supreme Court as an institution is in trouble. At oral argument in the Mississippi abortion case in December 2021, Justice Sonia Sotomayor asked the rhetorical question: “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? I don’t see how it is possible.”

Sotomayor was talking about the politicization of the Court. But the latest “stench” spills over into a code of conduct for the judiciary.

The stench has gotten worse. There was a time when Americans looked up to the Court and respected its decisions even when they disagreed. Now, it is down on the pitch with the political branches of government — angry, partisan and backbiting.

Justice Samuel Alito will brook no criticism of the institution. He says to attack the Court makes the justices “targets of assassination” and “undermines confidence in the government.” Maybe it is a just verdict for public “confidence” to have ebbed. Recent events reveal that the Court is ethically cavalier, if not corrupt. Once the paragon of “equal justice under law,” the shibboleth carved into its entrance façade, the Supreme Court has become a laughingstock, the butt of mordant humor.

At the White House Correspondents’ Dinner last week, Comedy Central’s Roy Wood, Jr, looking smooth as silk in black tie and studs, ridiculed conservative Supreme Court Justice Clarence Thomas. Speaking of what billionaires can spend their money on, Wood shticked, “Do you understand how rich you have to be to buy a Supreme Court — a black one, on top of that! There’s only two in stock. And he owns half the inventory. We can all see Clarence Thomas, but he belongs to billionaire Harlan Crow. And that’s what an NFT is.”

The sad thing about it is it’s funny, and the sadder thing about it is it’s fair. What’s a trip on a yacht and a few plane rides between honest men?

Thomas might argue that he is a conservative, an originalist, a textualist and, as he liked to tell his clerks early in his tenure, “I ain’t evolving.”

Perhaps we should trust him. No amount of money could influence him from his 18th century zeitgeist. But the appearance of impropriety looms large, and there is a case in point against him. In 1938, the Court of Appeals for the Second Circuit affirmed the conviction of a chief judge of that court named Martin Manton for conspiracy to obstruct justice and to defraud the United States. Two Supreme Court justices sat on the panel of three judges. Manton’s crime was that he accepted gifts and other consideration ostensibly to influence his judicial decisions. Among Manton’s defenses was that there were other honest unbribed judges on the panel, and the cases were justly decided.

The court had little problem with that one, stating that, “there is nothing to the point.”

The protestations of the justices notwithstanding, there is a serious problem with the Court’s lack of enforceable ethics rules, as well as its refusal to be bound by ethical standards binding on all other members of the federal judiciary, or its refusal even to take a stab at elaborating its own standards of non-judicial conduct.

The justices have carte blanche when it comes to issues of ethics. As Justice Robert Jackson said famously: “We are not final because we are infallible, but we are infallible only because we are final.”

“Trust me” won’t work anymore. Not since the time when Thomas refused to recuse himself from the case involving Trump’s efforts to block turnover of certain materials to the Jan. 6 committee despite the active role his wife, Ginni, played in trying to keep Trump in office. Thomas dissented in an 8-1 split vote in that case — a case in which the law required recusal since his impartiality “might reasonably be questioned.” All federal judges, under the Code of Conduct for U.S. Judges, are supposed to avoid not just actual impropriety, but even the appearance of it. But apparently not the Supreme Court.

Since the Court refuses to adopt an enforceable code of conduct, and since the chief justice refuses to testify before Congress to elaborate his position, it is up to Congress to make the rules for them.

Separation of powers issue, you say? Not on your life.

Harvard Law School Professor and constitutional expert Laurence Tribe has considered the question. “Congress has ample power to enact ethical standards to govern the non-judicial conduct of SCOTUS Justices, derived from the Necessary and Proper Clause…vesting of the judicial power in one Supreme Court,” he writes. “Such a code would enhance, not erode, the currently endangered independent judiciary.”

And, if you think Tribe is too liberal, how about retired appellate Judge J. Michael Luttig, a conservative who agrees: “[Tribe] and I are in complete agreement on Congress’ indisputable constitutional power to legislate ethical standards of conduct that would be binding as to the non-judicial conduct and activities of the Supreme Court.”

As former U.S. attorney and legal analyst Joyce Vance has written: “It’s not an issue of politics. It’s one of institutional integrity.”

James D. Zirin, a former federal prosecutor in the Southern District of New York, is the author of the 2016 book “Supremely Partisan—How Raw Politics Tips the Scales in the United States Supreme Court.”